Petition — Pace v. Department of the Treasury

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DEC 26 1978

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OCTOBER TERM, 1978

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WILLIAM M. PACE, ET AL.,

Petitioners

versus

DEPARTMENT OF TREASURY, ET AL.,

Respondent

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

WILLIAM M. PACE

Post Office Box 112

Aberdeen, Mississippi 397 30

601-369-2310

Attorney for Petitioners

A a aS

A B Letter Service, Inc., 327 Chartres St., New Orleans, La. (504) 581-5555

Oy en agement

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INDEX

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Issue Not Settled by the Supreme Court.......

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Appendix A - Report and Recommendation

of the United States Magistrate... ..

Appendix B- Order of United States District

Appendix C - Decision of U.S. Court of

Appeals for the Fifth Circuit.......

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INDEX (Continued)

Appendix D - Decision of U.S. Civil Service

Commission dated September 15,

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Appendix F-5 U.S.C.5101(1)(A) ..... .......

PAGE

A-24

A-29

A-30

CASES:

iii

CITATIONS

Haneke v, Secretary of Department of Health,

Education and Welfare, 535 F.2d 1291

(1976)...

United States v. Testan,

424 U.S. 392 (1976), 47 L. Ed. 2d 114........

STATUTES:

5 U.S.C. 702

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RULES:

Rule 19.1(b)

PAGE

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1978

NO.

WILLIAM M. PACE, ET AL.,

Petitioners

versus

DEPARTMENT OF TREASURY, ET AL.,

Respondent

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Petitioner prays that a writ of certiorari issue to review

the decision of the United States Court of Appeals for the

Fifth Circuit rendered September 28, 1978.

OPINIONS BELOW

The unpublished decision of the U.S. Court of Appeals

for the Fifth Circuit, without opinion, affirmed the U. S.

District Court order on September 28, 1978, and is attached

as Appendix C. The U.S. District Court Magistrate’s recom-

mendation (Appendix A) was adopted by the U.S. District

Court in its order (Appendix B), filed September 22, 1977.

JURISDICTION

The jurisdiction of this Court is invoked under Rule 19.1

(b) of the Rules of the Supreme Court of the United States

and 28 U.S.C. 1254(1).

QUESTION PRESENTED

Whether the U.S. Civil Service Commission is required to

compare positions of federal investigators when a complaint

is received, to assure compliance with the ‘‘equal pay for

substantially equal work” statute, 5 U.S.C. 5101.

STATEMENT OF THE CASE

In November 1974, seventy one experienced GS-11 Special

Agents of the Bureau of Alcohol, Tobacco and Firearms, De-

partment of Treasury, submitted a grade classification appeal

to their agencies (BATF and Treasury) that they had the

same assigned duties and performed the same job as GS-12

agents; and furthermore, that BATF special agents were not,

in general, classified as highly as investigators in other federal

investigative agencies.

BATF and Treasury forwarded the complaint, without

action, to the U.S. Civil Service Commission.

The substance of the appeals was that in the unique field

of criminal investigation, it would be necessary to survey the

question on a national basis. That is, all type crimes are not

being committed all of the time in all of the places and, in

fairness to all, it would be necessary to compare the ‘‘pos-

tions’ of higher graded investigators with those of the pe-

titioner special agents.

The Commission apparently agreed with the agents, and in

March 1975, centralized the appeals from ten states because

of ‘national implications.’’ During the following months the

3

Commission changed its mind, and in September 1975 is-

sued an opinion that it would not examine the ‘‘central

issue,’’ but would examine the duties performed by each

appellant agent at his specific post of duty during an ar-

bitrary time span chosen by the Commission. (That de-

cision is attached as Appendix D.)

Thus, the Commission refused to ‘‘compare positions”

and avoided the central issue. The Commission refused to

compare positions of an appellant agent with those of

another agent in his same office as well as to make a com-

parison of positions between BATF special agents and those

of any other national investigative agency.

Each appellant agent had exactly the same argument as

all the other appellant agents. Some of them may have

“won” their appeal by submitting to the Commission deci-

sion if a ‘‘complex”’ crime had, by chance, occurred at his

post of duty. Some of them may have “‘lost,”’ by chance,

but the winners would have been in exactly the same “‘posi-

tion”’ as the losers.

The agents appealed this Commission decision to the U.S.

District Court under the judicial review section of the Ad-

ministrative Procedures Act, 5 U.S.C. 702 (attached as

Appendix E). The Commission defended its action on the

grounds that the Commission was not required to make com-

parisons of positions in the federal service; and that its deci-

sion was not a “final” decision, therefore the agents had not

exhausted their administrative remedies.

The District Court agreed with the Commission and adopt-

eda recommendation by the U.S. Magistrate that the com-

4

plaint be dismissed and the class action not be certified. The

U.S. Court of Appeals for the Fifth Circuit affirmed the Dis-

trict Court’s dismissal.

ARGUMENT

The agents based their appeal on 5 U.S.C. 5101 (1)(A)

which mandates ‘‘equal pay for substantially equal work,”

and emphasized the importance of the matter by pointing

out that “the integrity of our enforcement system depends in

large part upon investigators being treated fairly and lawfully;

otherwise, the investigator who is willing to advance the

carreer of his supervisor, by whatever means, will improve his

own pay. Those who attempt, in many cases, to stick closer

to the truth and the Constitution, do not advance their car-

eers very well.”

The power to adjust investigators’ pay on factors other

than the classification of assigned duties on a nationwide

basis, is an extremely dangerous power to leave in the hands

of enforcement agency managers. The Congress did not in-

tend to do that and enacted the section previously cited (5

U.S.C. 5101) as well as the Federal Pay Comparability Act

of 1970:

5 U.S.C. 5301 Policy

(a) It is the policy of Congress that Federal pay

fixing for employees under statutory pay

systems be based on the principles that -

(1) there be equal pay for substantially equal

work

5

Conflict in Decisions of U.S. Courts of Appeal

The effect of this decision by the U.S. Court of Appeals

for the Fifth Circuit is that the Civil Service Commission is

not required to compare positions in order to assure equal

pay for substantially equal work. This is in direct conflict

with the U.S. Court of Appeals, District of Columbia Circuit,

that held in Haneke v. Secretary of H.E.W., 535 F. 2d 1291

(1976) that the refusal by the Commission to even consider

whether it was applying two labels to the same work was

arbitrary and capricious.

Haneke, a glassblower, alleged that he was performing

identical duties with higher rated employees in his own shop

and in other agencies. The Commission refused to make the

comparisons. Haneke sought retroactive back pay and man-

damus to compel the Commission to make the comparisons

for prospective relief. The District Court denied both reme-

dies. The Court of Appeals affirmed the denial of back pay

on the basis of United States v. Testan, 424 U.S. 392 (1976),

47 L. Ed. 2d 114, but they required the District Court to re-

mand and direct the Commission to make the comparisons

requested by Haneke.

Issue Not Settled by the Supreme Court

Testan, supra, brought two questions to the Supreme

Court: 1. Can a government employee, who alleges he has

been classified improperly, collect retroactive ‘‘back pay” or

more specifically, can the U.S. Court of Claims award retro-

active money damage relief in wrongfui classification cases? ;

and 2. Can the courts, with a view toward prospective relief,

order the Commission to compare positions of some employ-

6

ees with those of employees in other agencies.

The Supreme Court clearly answered the first question:

retroactive relief is not available in classification cases, but

the Court sidestepped the second question. By holding that

the U.S. Court of Claims did not have jurisdiction to award

back pay the court found it “unnecessary for us to consider

the additional argument advanced by the United States that

the Classification Act does not require that positions held by

employees of one agency be compared with those of employ-

ees in another agency.”

CONCLUSION

The controlling question in this case is whether the Com-

mission is required to compare job positions in order to com-

ply with the “equal pay for substantially equal work”

statute. If they are required to do so, then the petitioner

agents exhausted all administrative remedies. If the Com-

mission is not required to compare positions, then the

government is correct when they assert that the agents did

not exhaust administrative remedies. (The ‘‘exhaustion”

question is contained within the ‘comparison’ question.)

The agents have not requested the Commission or the

courts to raise their classifications. They merely requested

that their job duties be compared with the duties of higher

classified agents and they were willing to take their chances

concerning the outcome. (The petitioner agents, including

the named petitioner who retired in 1976, have long since

given up any hope of back pay. The question of prospective

relief for those who remained in service is still active, but a

more important question concerns how the investigative

agencies will be managed.)

It is respectfully submitted that this Court should review

the lower courts’ decisions and remand the case with instruc-

tions to supervise the investigation and comparison of posi-

tions by the Civil Service Commission.

Respectfully submitted,

WILLIAM M. PACE

Attorney for Petitioners

Post Office Box 112

Aberdeen, Mississippi 39730

(601) 369-2310

8

PROOF OF SERVICE

In furtherance of the Rules, I certify that I have served

three copies of the above petition for writ of certiorari upon

Mr. H. M. Ray, United States Attorney, Post Office Box 886,

Oxford, Mississippi 38655, and three copies to the Solicitor

General, Department of Justice, Washington, D.C. 20530.

This the 22nd day of December, 1978.

WILLIAM M. PACE

A-1]

APPENDIX A

REPORT AND RECOMMENDATIONS OF

UNITED STATES MAGISTRATE

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF MISSISSIPPI

EASTERN DIVISION

Filed: July 11, 1977

WILLIAM N. PACE, Plaintiff

vs. NO. EC 75-168-S

DEPARTMENT OF THE TREASURY, ET AL,

Defendants

REPORT AND RECOMMENDATIONS OF

UNITED STATES MAGISTRATE

The defendants have moved to dismiss the above entitled

action or, in the alternative, for summary judgment in their

favor, on the grounds that (1) plaintiff has failed to exhaust

administrative remedies; and (2) plaintiff’s retirement from

the Bureau of Alcohol, Tobacco and Firearms of the Treas-

ury Department (BATF) renders his own claim moot and also

makes him an improper class representative. Plaintiff has

moved for certification of a plaintiff class consisting of all

BATF special agents in pay grade GS-11. Both motions have

been referred to the magistrate for report and recommenda-

tions.

When this action was filed plaintiff Pace was a BATF

A-2

agent, GS-11, one of two pay grades established for special

investigators. The other is GS-12. The substance of plain-

tiff’s claim is that all BATF special agents perform essentially

the same work and have the same responsibilities within their

assigned territories. Plaintiff claims that this is true, regard-

less of whether the special agent is a GS-11 or a GS-12. This

being so, plaintiff says, the designation of some special agents

as GS-11s, while others are GS-12s, is an arbitrary system of

classification which is not founded upon any objective stand-

ards distinguishing the duties and responsibilities of those in

one pay grade from those in the other. Accordingly, plain-

tiff contends that the present system of establishing pay

grades for BATF special agents violates the basic principle

of equal pay for substantially equal work mandated by 5

U.S.C. §5101(1) (A). Plaintiff also contends that BATF

special agents, as a group, are, considering the nature of

their duties, not as well paid as employees of other federal

criminal investigative agencies doing substantially the same

work and that this, too, violates the principle of equal pay

for substantially equal work. As stated by plaintiff's counsel

in the course of oral argument on these motions, what plain-

tiff Pace seeks in this action on behalf of himself and all

other BATF GS-11 special agents is an adjudication that all

BATF special investigators perform substantiaily the same

work, and a remand to the Civil Service Commission (CSC)

with directions to determine the pay grade within which that

work properly fits.

1. The system of classification of federal employees is established in 5

U.S.C, §§5101-5115. Under that scheme each “agency,” as defined in

§5102(a)(1), is. required to assign each position under its jurisdiction to

an appropriate class and grade, consistent with standards published by

the Civil Service Commission. $5107. When warrarted by the facts, an

agency has authority to change the class or grade of a position to an-

other class or grade. /d. A ‘‘class’’ is a type of work or occupation,

(Footnote continued on next page)

A-3

Plaintiff also asks that the court fix a time limit within which

CSC must act upon remand.

Both plaintiff and defendants have filed elaborate affi-

davits to which are attached voluminous exhibits in support

of their respective positions on defendants’ motion to dismiss

or for summary judgment. Therefore, the motion must be

considered as a motion for summary judgment, Rule 12(b),

Federal Rules of Civil Procedure, and is governed procedur-

ally by Rule 56, FRCP.

The affidavits of the parties, together with their supporting

exhibits, show the historical facts of the antecedent adminis-

trative proceedings to be substantially undisputed. There are,

to be sure, hotly disputed issues as to the legal conclusions

to be drawn from certain of those historical facts, but the

facts themselves are not in issue.

(Footnote 1 continued from previous page).

as more particularly defined in § 5102(a) (4), and ”...the duties and

responsibilities of the position and the qualifications required by the

duties and responsibilities... determine the class in which a position is

placed. §5106(a). A “grade” is a rate of basic pay, as more particu-

larly defined in §5102(a) (5), and “’...the level of difficulty, respon-

sibility, and qualification requirements of the work of the class...’’ is

the basis upon which the appropriate pay grade is determined. §5106

(b). The CSC is granted authority to ascertain the facts as to the

duties, responsibilities, and qualification requirements of a position;

to determine whether a position is in its appropriate class and grade;

and to change a position from one class or grade to another when the

facts warrant. §5112(a). Furthermore, upon request of an affected

employee, CSC is required to make such a determination. § 5112(b).

The CSC is granted authority to prescribe regulations for the implemen-

tation of the powers conferred by the cited statutes. § 5115. Pursuant

to that authority, CSC has promulgated regulations es ablishing a pro-

cedure by which a federal employee may appeal to CSC to determine

the appropriate class or grade of his position. 5 CFR §§ 511.601-

511.612. Judicial review of CSC actions is available under 5 U.S.C,

§ 9701-706.

A-4

The chronology of the administrative proceedings is set

out and documented in minute detail in the affidavits of the

parties, It is sufficient for present purposes to condense and

summarize the controlling facts.

On November 27, 1974 plaintiff, acting on his behalf and

as designated representative of thirty other BATF special

agents, as authorized by 5 CFR § 511.603(a), forwarded to

CSC through BATF an appeal requesting a decision that they

be upgraded to pay grade GS-12. Pursuant to5 CFR §511.

604(b) plaintiff requested that the appeal be forwarded by

BATF to CSC if not favorably acted upon by BATF within

thirty days. (Affidavit of William M. Pace, attachment 22).

Subsequently, other BATF agents filed similar appeals desig-

nating plaintiff as their representative, the total of appealing

agents ultimately reaching seventy-seven. On December 27,

1974 the Acting Director of Personnel of the Department of

Treasury forwarded the appeals without action to the Atlanta

Region of CSC, advising CSC and plaintiff that BATF could

not make a determination within the prescribed thirty day

limit. (Pace affidavit, att. 35) On January 24, 1975 the At-

lanta regional office of CSC requested that Treasury furnish

it with the administrative report on the appealed positions,

which was supplied by Treasury to Atlanta CSC on March 4,

1975. (Affidavit of William M. Crater, pp. 34) On March

14, 1975 CSC concluded, and so advised plaintiff, that the

appeals should be centralized in its Washington office, rather

than being handled in the respective regions, because the ap-

peals crossed regional lines and decisions thereon might have

nationwide implications, and further because the questions

raised by the appeals were then under study by a Treasury

Task Force. (Pace affidavit, att. 56)

A-5

After receiving the records of the various appeals from its

regional offices, CSC reviewed them and developed a review

plan. The review plan contemplated the completion by each

appealing special agent and his supervisor of questionnaires

specifically designed by CSC for use in these appeals. The

completed questionnaires were to be submitted to the appro-

priate CSC regional office, which would analyze the data and

recommend to the Washington office of CSC a decision in

each individual case. Washington CSC would then review the

regional recommendations to insure that standards were con-

sistently applied by all regions. A final decision would be

made in each case by Washington CSC. The review plan also

provided for audits of individual positions where necessary to

resolve ambiguous or borderline cases or questionable issues.

Whether or not to conduct such audits was to be left to the

discretion of the regional CSC office, but it was suggested by

Washington CSC that Atlanta CSC contact plaintiff for an

audit of his position. (Crater affidavit, p. 4; Pace affidavit,

att. 64)

On September 15, 1975 Washington CSC forwarded the

questionnaires, instructions and other papers to the Atlanta,

Dallas and Denver regional offices, and a copy was forwarded

to plaintiff at the same time. (Pace affidavit, att. 64)

Plaintiff interpreted the CSC approach as an adverse ruling

on the appeals and so advised CSC on September 19, 1975.

(Pace affidavit, att. 65) A substantial volume of correspon-

dence passed back and forth between plaintiff and Washing-

ton CSC in which CSC took the firm position that its review

plan, including the questionnaire approach, did not consti-

tute an adverse ruling on the appeals, but was the method

chosen by CSC to develop the facts necessary for it to make a

A-6

ruling. Plaintiff,just as firmly, adhered to his interpretation

that CSC had ruled adversely to the appealing agents, and he

severely criticized the questionnaire approach and the ques-

tionnaire itself in a letter to CSC dated October 13, 1975.

(Pace affidavit, att. 71) In that same letter, copies of which

went to all appealing agents, plaintiff stated that he was ad-

vising the agents represented by him not to complete the

questionnaires and further stated that any agent desiring to

participate in the CSC review plan should revoke his designa-

tion of plaintiff as his representative. By this time plaintiff

had employed an attorney, and a copy of his October 13,

1975 letter also went to the attorney.

On October 23, 1975 CSC replied to plaintiff’s letter of

October 13, recognizing as valid one of his criticisms of the

questionnaire. (Pace affidavit, att. 72A) A clarifying letter

was sent by CSC to each of the appealing agents, and each

regional office of CSC was asked to send a similar clarifying

letter to each supervisor involved. (Crater affidavit, p. 6)

At the same time, plaintiff was reminded, as he had been pre-

viously, that failure of the appealing employees to cooperate

fully with CSC might result in cancellation of the appeals.

See 5 CFR §511.609(b).

On October 22, 1975 plaintiff again wrote to CSC advising

that his attorney had that day filed this action seeking, inter

alia, judicial review of the administrative action of the agency

and CSC. (Crater affidavit, att. S) The complaint in this

action was filed on that date. Plaintiff's October 22 letter

was received by CSC on October 28, 1975. (Crafter affidavit,

p. 6) On November 7, 1975 CSC again wrote to plaintiff,

with copies to all appealing agents, reviewing its handling of

the appeals and restating its position. Plaintiff was further

A-7

advised that, under the provisions of 5 CFR § 511.609(b),

the appeals had been cancelled on the ground that plaintiff

had failed to cooperate fully in the appeal process. (Pace

affidavit, att. 73 )

On November 23, 1976 (coincidentally, the date on which

the magistrate heard oral argument on these motions) plain-

tiff retired from BATF.

The foregoing provides the factual background necessary

to an understanding of the issues raised by these motions,

and such additional undisputed facts as are relevant to speci-

fic points will be referred to where appropriate in the course

of the following legal analysis.

Initially the motion for summary judgment was based

entirely upon plaintiff's asserted failure to exhaust adminis-

trative remedies. However, when plaintiff's retirement be-

came known defendants set up the additional ground that the

action has been rendered moot by the retirement. That posi-

tion is based upon United States v. Testan, 424 U.S. 392

(1976), in which the Supreme Court held that only prospec-

tive relief can be granted for improper classification of gov-

ernment employees, and that back pay is not authorized for

the period of alleged wrongful classification. Plaintiff res-

ponds that, even if he can no longer hope to recover upon his

own claim, the action should not be dismissed because he is

here seeking to represent a class and the fact that his individ-

ual claim may not be a winning one does not justify dismissal

of the class action, or, in the alternative, the court should al-

low a reasonable period of time for another member of the

putative class to move to intervene and act as class repre-

sentative before finally dismissing the action.

AS

Plaintiff’s individual claim is quite clearly moot under

Testan, and plaintiff does not now contend otherwise. Hav-

ing retired, he is no longer employed by BATF, and, since

back pay is not authorized for the period of alleged wrongful

classification, he would be entitled to no relief even if it

should be subsequently determined that all BATF special

agents should be classified CS-12.

It is equally clear that plaintiff is no longer a proper class

representative under Rule 23(a) (4), FRCP. In order to act

as a class representative under Rule 23, one must be a mem-

ber of the class which he seeks to represent. Fast Texas

Motor Freight System, Inc. v. Rodriguez, US. , 45

L.W. 4524, 4526-4527 (decided May 31, 1977). One who

can suffer no injury as a result of the practice complained of

is not a member of the class, and is not a proper class repre-

sentative. Rodriguez, supra. The Fifth Circuit has held that

a retired employ 2e is no longer a member of a putative class

of active employees, and is therefore not a proper class repre-

sentative, even under the liberal construction of Rule 23 re-

quired in Title VII employment discrimination cases. Brad-

ley v. Southern Pacific Company, Inc., 486 F.2d 516 (5 Cir.

1973). Accordingly, the motion for summary judgment

should be sustained unless plaintiff's alternative argument

that time should be allowed for another member of the class

to step in as named plaintiff is well taken. Resolution of that

issue requires that the court address itself to the issue of ex-

haustion of administrative remedies.

This is so because, even though a class action may be main-

tained on behalf of absent class members who have not ex-

hausted administrative remedies, it is required that adminis-

trative remedies have been exhausted by the named plaintiff

A-9

who seeks to represent the class. Oatis v. Crown Zellerbach

Corporation, 398 F.2d 496, 499 (5 Cir. 1968). Since plain-

tiff Pace was the designated representative of all of the ap-

pealing agents before CSC, his actions were their actions.

If he has failed, acting in their behalf, to exhaust adminis-

trative remedies there is no member of the putative class

who could properly proceed as named plaintiff in this action

because none have exhausted administrative remedies, 2

It is a well established principle of federal law that exhaus-

tion of available administrative remedies is a condition pre-

cedent to invoking the judicial process in the resolution of

grievances against the government, its agencies, or officials.

Aircraft and Diesel Equipment Corp. v. Hirsch, 331 U.S, 752

(1947); Hodges v. Callaway, 499 F.2d 417 (5 Cir. 1974);

Penn v. Schlesinger, 497 F.2d 970 (5 Cir. en banc 1974), re-

versing panel decision, 490 F.2d 700, and adopting dissent-

ing opinion of Godbold, J., 490 F.2d, at 707-714. In Air-

craft and Diesel Equipment Corp. v. Hirsch, supra, the Su-

preme Court said of the exhaustion doctrine:

“The doctrine, wherever applicable, does not re-

quire merely the initiation of prescribed adminis-

trative procedures. It is one of exhausting them,

that is, of pursuing them to their appropriate con-

clusion and, correlatively, of awaiting their final

outcome before seeking judicial intervention.”

331 U.S., at 767.

2. It is true that the putative class includes all GS-11 special agents,

and is therefore not limited to the 77 agents represented by Pace be-

fore the CSC. However, there is nothing in the record to show that any

other GS-11 agent has exhausted administrative remedies.

A-10

There are exceptions to the exhaustion requirement, but

they are not to be liberally applied, and a strong showing of

their applicability is required in order to short-circuit the

administrative process, as the Supreme Court stated in Air-

craft and Diesel Equipment:

“It is true that the, presence of constitutional ques-

tions, coupled with a sufficient showing of inade-

quacy of prescribed administrative relief and of

threatened or impending irreparable injury flowing

from delay incident to following the prescribed

procedure, has been held sufficient to dispense

with exhausting the administrative process before

instituting judicial intervention. But, without

going into a detailed analysis of the decisions, this

rule is not one of mere convenience or ready appli-

cation. Where the intent of Congress is clear to

require administrative determination, either to the

exclusion of judicial action or in advance of it, a

strong showing is required, both of inadequacy of

the prescribed procedure and of impending harm,

to permit short-circuiting the administrative pro-

cess. Congress’ commands for judicial restraint in

this respect are not lightly to be disregarded.” 331

U.S., at 773-774.

By virtue of the statutory scheme described at note 1

supra, Congress has manifested a clear intent to require ad-

ministrative determination of federal employee classification

complaints in advance of judicial action. It is also abundant-

ly clear that CSC made no adverse determination of the ap-

pealing agents’ classification complaints by virtue of its

A-11

adoption of a review plan incorporating the use of question-

naires to be completed by the individual agents and their

supervisors, plaintiff’s conclusion to the contrary notwith-

standing. The questionnaires were merely the device adopted

by CSC to gather facts. Thus, under the principles enun-

ciated by the Supreme Court plaintiff's failure to exhaust

administrative remedies would be obvious, and the exhaus-

tion issue would require little further discussion, but for the

vigor with which plaintiff presses his argument that, once

CSC decided upon the individual questionnaire approach, a

result adverse to the appealing agents was predetermined and

any further resort to administrative remedies would have

been futile, resulting only in further delay and irreparable

harm to plaintiff and the other agents represented by him.

Careful consideration has been given to the extensive briefs

of the parties, to the copious authorities cited therein, and to

the oral arguments of counsel. Plaintiff's position on the ex-

haustion issue, though skillfully and vigorously presented, is

not supported by authority, nor by sound principles of ad-

ministrative law. This is revealed by analysis of the cases

upon which plaintiff relies.

Plaintiff cites McKart v. United States, 395 U.S. 185

(1969) to illustrate the principle that exhaustion of adminis-

trative remedies is not required in every case. However, in

McKart the only factual issue was whether or not the defen-

dant was a sole surviving son of a family whose father had

been killed in military service. That defendant's father had

been killed in military service and that defendant was the sole

surviving son of the family was established without dispute.

The only issue to be resolved was one of law. McKart wasa

criminal prosecution for failure to report for and submit to

A-12

induction into the armed forces, and the Supreme Court held

that the defendant should not be deprived of a defense toa

criminal charge for failure to exhaust administrative remedies

when the facts were established beyond dispute and resolu-

tion of the controversy involved only decision of a point of

law, which is the province of a court rather than an adminis-

trative agency. The court discussed the purposes served by

the exhaustion requirement, 395 U.S., at 193-195, at least

one of which is peculiarly applicable here.

‘A primary purpose is, of course, the avoidance

of premature interruption of the administrative

process. The agency, like a trial court, is created

for the purpose of applying a statute in the first

instance. Accordingly, it is normally desirable to

let the agency develop the necessary factual back-

ground upon which decisions should be held. And

since agency decisions are frequently of a discre-

tionary nature or frequently require expertise, the

agency should be given the first chance to exercise

that discretion or to apply that expertise. And of

course it is generally more efficient for the admin-

istrative process to go forward without interrup-

tion than it is to permit the parties to seek aid

from the courts at various intermediate stages. The

very same reasons lie behind judicial rules sharply

limiting interlocutory appeals.” 395 U.S., at

193-194.

Here, the facts upon which the classification of the positions

of plaintiff and the agents represented by him are to be

determined are neither simple nor clear, despite plaintiff's

assertions to the contrary. CSC is vested by statute with the

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responsibility of determining currently just those facts. 5

U.S.C. § 5112(a) (1); Kavazanjian v. U. S. Immigration and

Naturalization Service, 399 F.Supp. 339, 345 (SD N.Y. 1975)

The classification claims of plaintiff and those represented by

him are peculiarly suitable for agency factual development

and the application of agency expertise. See Kavazanjian,

supra,

But plaintiff aruges that the exhaustion requirement is not

to be applied blindly in every case, and has no application

where exhaustion would be futile or the available administra-

tive remedies are inadequate, citing Lodge 1858 American

Federal of Government Employees v. Payne, 436 F.2d 882

(DC Cir. 1970); McKart v. United States, supra; Ellis v.

Naval Air Rework Facility, 404 F.Supp. 391 (NDC . 1975);

and VLRB v. Marine Workers, 391 U.S, 418 (1968). McKart

has been distinguished supra. In Lodge 1858 further exhaus-

tion of administrative remedies was not required because

such remedies had already been exhausted and the Civil

Service Commission had professed a lack of power to act.

Therefore, further exhaustion would have been futile. No

such circumstance exists here. CSC was ready and willing to

act, and was in the process of doing so, when plaintiff short-

circuited the administrative proceedings. Ellis merely stands

for the principle, well established in the Fifth Circuit, see

Oatis v. Crown Zellerbach Corp., supra, that exhaustion of

administrative remedies is not necessary as to all members of

a class if the named class representative has exhausted.

Marine Workers involved only internal union grievance pro-

cedures, and the Supreme Court discerned no congressional

intent to require the exhaustion of such internal remedies be-

fore filing a charge with the National Labor Relations Board

or seeking subsequent judicial relief. Here, the congressional

A-14

intent to require exhaustion is manifested by the statute.

On the same point plaintiff also cites Wallace v. Lynn, 507

F.2d 1186 (DC Cir. 1974); Nationel Resources Defense

Council v. Train, 510 F.2d 692 (DC Cir. 1975); and Marsh v.

County School Board of Roanoke, $05 F.2d 94 (4 Cir.

1962). Wallace is of no help to plaintiff because the court

in that case held that exhaustion of administrative remedies

was required. In Marsh, a school desegregation case, exhaus-

tion was not required because the administrative procedure

was itself a part of the discriminatory pupil assignment sys-

tem. It was thus not an efficacious remedy. In Natural Re-

sources Defense Council exhaustion was not required because

the administrative agency, the Environmental Protection

Agency, had already established a firm position on the issue

at hand and indicated no disposition to reconsider it. 510

F.2d, at 703. In this case CSC has taken no such firm posi-

tion, but was in the process of giving consideration to plain-

tiff’s claims when its efforts to do so were frustrated by

plaintiff’s refusal to complete the questionnaire and his ad-

vice to those he represented that they should not do so.

Plaintiff argues that this was justified because the ques-

tionnaire was loaded against him and the other GS-11 agents,

and the result of the review procedure utilizing the ques-

tionnaire was therefore preordained.

An examination of the proposed questionnaires for the

agents and their supervisors (Pace affidavit, att. 64, pp. 192-

201), together with CSC’s clarifying letter of October 23,

1975 (Pace affidavit, att. 72A) reveals the questionnaires to

be well calculated to develop facts useful to CSC in deter-

mining whether or not the positions held by the appealing

agents were in the proper class and grade accurding to the

A-15

classification standards prepared by CSC pursuant to 5

U.S.C. §& 5105. The questionnaire approach is obviously

not the way plaintiff would like to see the matter handl-

ed. It causes him to be pessimistic as to the outcome, but he

is not entitled to equate his pessimism with futility of the

administrative process. The courts are required, at the out-

set, to presume that the administrative agency will perform

its responsibilities in good faith according to the law and its

own regulations. Hodges v. Callaway, supra, 499 F.2d, at

424. In performing its statutory function CSC is not restric-

ted to the method selected by plaintiff, but has some lati-

tude. Kavazanjian v. U. S. Immigration and Naturalization

Service, supra, 399 F.Supp., at 346.

United States v. Potter, 402 F.Supp. 1161 (D Mass. 1975)

and United States v. Hayden, 445 F.2d 1365 (9 Cir. 1971)

were both criminal prosecutions for violation of provisions of

the Selective Service Act in which the courts refused to de-

prive defendants of the right to raise defenses because of

failure to exhaust administrative remedies. In Potter the

Selective Service System had failed to follow the procedure

prescribed by its own regulations before reporting the defen-

dant for prosecution. In Hayden exhaustion was not requir-

ed because the issue upon which it was claimed the defen-

dant had failed to exhaust his administrative remedies had al-

ready been judicially determined in his favor by a United

States District Court in another matter. No similar circum-

stances are to be found in this case.

Plaintiff next argues that where the administrative reme-

dies will be time consuming and delay will result in irre-

parable injury exhaustion should not be required, citing

Martinez v. Richardson, 472 F.2d 1121 (DC Cir. 1973);

A-16

Comprehensive Group Health Service Board of Directors v.

Temple University, 363 F.Supp. 1069 (ED Pa. 1973); and

Nader v. Federal Communications Commission, 520 F.2d

182 (DC Cir. 1975). In Martinez the claimants for medi-

care benefits were all elderly and in poor health, and real

danger existed that they might die before the administrative

procedure and subsequent judicial review could be conclu-

ded. Furthermore, the federal question sought to be liti-

gated was held to be so plain that exhaustion should be ex-

cused. In Comprehensive exhaustion was excused for many

reasons, enumerated at 363 F.Supp., 1097-1098, of which

the passage of time was only one, and a very minor one at

that. Nader involved an FCC investigation of the rate struc-

ture of American Telephone and Telegraph Company. No

decision had been reached on one aspect of the investigation

after it had been in progress for more than ten years. On

another aspect, no meaningful proceedings had even begun

after a similar passage of time. Even under those circum-

stances, the administrative agency was allowed to proceed,

but was required to establish a schedule for the orderly and

expeditious resolution of the issues before it. No meaning-

ful analogy can be drawn between those cases and the case

sub judice.?

3. In connection with plaintiff’s argument that exhaustion should be

excused because of delay and resulting irreparable harm, a compari-

son of this case with Kavazanjian v. U. S. Immigration and Naturali-

zation Service, supra, and Brech v. United States Immigration and

Naturalization Service, 362 F.Supp. 914 (SD N.Y. 1873) is interesting,

though not controlling, and perhaps not even significant. Kavazanjian

and Brech both involved classification appeals by investigators and

other officers of the Immigration and Naturalization Service. Both pro-

ceedings involved large numbers of positions. In Brech the appeal pro-

ceedings before CSC were pending for approximately two and one half

years. In Kavazanjian the CSC appeal process consumed approximately

one year, but was preceded by several years of dealings with the agency,

which was alleged by the plaintiffs in Kavazanjian to have been acting

A-17

It is plaintiff’s contention that a proper evaluation of the

classification of the positions in question requires, not only a

comparison of the work required with standards established

by CSC (See 5 U.S.C. §5105), but also a comparison of the

BATF special agent positions with positions in other federal

law enforcement agencies. CSC was not willing to undertake

such inter-agency comparisons, and on October 2, 1975

wrote to plaintiff explaining, inter alia, why it did not con-

sider inter-agency comparisons to be appropriate. (Pace ex-

hibit, att. 67) Briefly summarized, CSC’s position was that it

was required by statute, presumably § 5105, to classify posi-

tions by comparing them with standards published by CSC,

rather than by comparing them with positions in other agen-

cies for which the published standards might be different.

Plaintiff characterizes CSC’s position on inter-agency com-

parisons as illegal, arbitrary, and capricious. Plaintiff cites

Haneke v. Secretary of Health, Education and Welfare, 535

F.2d 1291 (DC Cir. 1976) as authority for the proposition

that inter-agency comparisons are required. /laneke does

stand for that proposition, at least in the peculiar circumstan-

ces of that case, in which a very small number of positions

were involved and the complaining employee was able to

designate specific individuals in other agencies allegedly per-

forming the same work as that being done by him. Never-

theless, the validity of the contention is not free from doubt.

(Footnote 3 - continued)

in bad faith. As is the case here, only prospective relief was available to

the appealing officers in Brech and Kavazanjian, yet in both of those

cases administrative remedies were fully exhausted before judicial re-

lief was sought. The issues involved in those classification controver-

sies bear many similarities to the substantive issues raised by plaintiff,

yet the employees seeking reclassification in both of those cases were

able to comply with the exhaustion requirement. Of course, no exhaus-

tion issue was raised in eitther Kavazanjian or Brech, but the compari-

son is nevertheless interesting.

A-18

The only other court to hold consistently with /laneke was

the Court of Claims in Testan v. United States, 499 F.2d 690

(Ct. Cl. 1974). In reversing Testan, the Supreme Court pre-

termitted the issue. 424 U.S., at 407. The issue has ap-

parently not been decided in the Fifth Circuit. Whatever the

merits of the argument may be, it is difficult to understand

its bearing on the exhaustion issue. Haneke is not an exhaus-

tion case. There, the complaining employee had exhausted

all available administrative remedies, and the decision is ex-

pressly predicated upon that consideration. 535 F.2d, at

1296. Such an issue is properly for the reviewing court after

administrative remedies have been exhausted. The exhaus-

tion doctrine requires that the parties await the outcome of

the administrative proceedings before seeking judicial inter-

vention. Aircraft Diesel Equipment Corporation v. Hirsch,

supra, 331 U.S. at 767, and this means that the adminis-

trative process should not be interrupted by judicial inter-

vention at intermediate stages. McKart v. United States,

supra, 395 U.S., at 194.

In short, no authority has been cited to the court in which

exhaustion of administrative remedies has been excused in

circumstances comparable to those existing here. The un-

contradicted facts establish that plaintiff has failed to ex-

haust administrative remedies and that no good cause exists

for excusing that failure. Accordingly, no purpose would be

served by delaying dismissal to permit intervention by other

class members. See pp. 78, supra. ‘There being no genuine

issue as to any material fact on the mootness or exhaustion

issues, defendants are entitled to judgment as a matter of

law, and their motion for summayy judgment should be

A-19

sustained.* Rule 56(c), FRCP.

In view of the action recommended on the motion for

summary judgment, it is unnecessary to consider plaintiff's

moticn to maintain class action.

It is therefore recommended that defendants’ motion for

summary judgment be sustained, and that the action be dis-

missed as moot.

Respectfully submitted, this the 8th day of July, 1977.

&

s/ J. David Orlansky

UNITED STATES MAGISTRATE

4. This will not leave those agents still in the service of BATF without

recourse if they still wish to pursue their administrative remedies, Al-

though 5 CFR §511.609(b) makes the reopening of cancelled appeals

subject to the discretion of CSC “’...on showing that circumstances be-

yond the control of the appellant prevented him from prosecuting

the appeal...,"” CSC counsel stipulation into the record at oral argument

that CSC is ready, willing and able to resume processing the appeals

from the point where they were terminated if the appealing agents now

wish to participate in the review procedure established by CSC.

A-20

APPENDIX B

Order of United States District Caurt -

dated September 21, 1977

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF MISSISSIPPI

EASTERN DIVISION

WILLIAM N. PACE,

Plaintiff

v. NO. EC 75-168-S

DEPARTMENT OF THE TREASURY, et al.,

Defendants

ORDER

Upon consideration of the motion of defendants to dis-

miss, or in the alternative, for summary judgment, together

with the file ad records in this action, including the

Report and Recommendations of the United States Magis-

trate dated July 8, 1977, and objections of plaintiff

thereto, the court is of the opinion that the Report and

Recommendations of the United States Magistrate should

be approved and adopted as the opinion of the court and

the objections thereto overruled; and as to defendants, the

motion for summary judgment should be sustained. It is,

therefore

ORDERED:

(1) That the Report and Recommendations of the United

A-21

States Magistrate dated July 8, 1977, be, and it is hereby,

approved and adopted as the opinion of the court, and plain-

tiff’s objections thereto are overruled and denied;

(2) That defendants’ motion for summary judgment be,

and it is hereby, sustained, and that this action be, and it is

hereby, dismissed; and

(3) That the clerk be, and he is hereby, directed to pre-

pared and serve upon counsel of record for each of the

parties, certified copies of this order, each of said persons

having heretofore been served by the magistrate with copies

of his report and recommendations.

This 21st day of September, 1977.

s/ (Signature Illegibile)

UNITED STATES DISTRICT

JUDGE

Entered 9/22/77

COB 28, pg. 274,275

A-22

APPENDIX C

Decision of U.S. Court of Appeals for the Fifth Circuit

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

DO NOT PUBLISH

NO. 77-3342

Summary Calendar*

WILLIAM M. PACE, ET AL.,

Plaintiffs-Appellants,

vs.

DEPARTMENT OF THE TREASURY, ET AL.

Defendants-Appellees,

Appeal from the United States District Court for the

Northern District of Mississippi

(September 28, 1978)

FILED: Oct 24, 1978

Before MORGAN, CLARK and TJOFLAT, Circuit Judges.

PER CURIAM: AFFIRMED. See Local Rule 21.’

* Rule 18,5 Cir,, Isbell Enterprises, Inc, v. Citizens Casualty Company

of New York, et al., 5 Cir., 1970, 431 F.2d 409, Part |.

1. See N.L.R.B. v. Amalgamated Clothing Workers of America, 5 Cir.,

1970, 430 F.2d 966.

A-23

Costs are taxed against plaintiffs-appellants.

Issued As Mandate: Oct 20 1978

A true copy

Test: EDWARD W. WADSWORTH

Clerk, U.S. Court of Appeals, Fifth Circuit

By: s/ Brenda Hauck

Deputy

New Orleans, Louisiana, Oct 20, 1978

A-24

APPENDIX D

Order of U.S. Civil Service Commission,

dated September 15, 1975

UNITED STATES GOVERNMENT

MEMORANDUM U.S. CIVIL SERVICE COMMISSION

Subject: Request for Regional Office Assistance in Processing

the Classification Appeals of William M. Pace et al.,

Criminal Investigators, GS-1811-11, Bureau of Al-

cohol, Tobacco and Firearms

From: _ s/ David B. Talty

David B. Talty, Chief

Classification Appeals Office

To: Director, Atlanta Region

Director, Dallas Region

Director, Denver Region

Date: Sep 15, 1975

In Reply Refer To:

PMC: APP

Your Reference:

J. J. Lafferty

John J. Lafferty

Acting Director

The purpose of this memorandum is to request the assistance

of the above regional offices in processing the classification

appeals of a group of Criminal Investigators, GS-1811-11],

A-25

employed by the Bureau of Alcohol, Tobacco and Firearms

(BATF) of the Department of Treasury. The investigators

have designated ATF Special Agent William Pace, who is

both an appellant and an AFGE official in Aberdeen, Mississ-

ippi, to represent them.

Background

Earlier this year this Office agreed to centralize the posi-

tion classification appeals of the group of ATF Special

Agents whose duty stations are located in the Atlanta, Dallas

and Denver Regions. At the time this approach was con-

sidered expedient in view of the fact that the appeals cross

regional lines and the decision might, therefore, have nation-

wide implications. However, after thoroughly reviewing the

appellate record and examining the central issue ‘n the ap-

peal, we now see the situation from a different perspective.

We initially considered this appeal to be similar to past

nationwide cases which were handled by conducting onsite

audits of a sample of the positions and then applying the re-

sulting decision to the remainder of the positions in the ap-

peal. After studying the file closely, we conclude that the

normal sampling procedure is not a viable approach in this

instance. In view of the nature of the appeal as outlined be-

low, we believe that each appellant's position will have to be

reviewed and a separate classification advisory opinion issued

covering each position.

All of the appellants are assigned to a standard position des-

cription (SPD Number 015). The appellants are not ques-

tioning the accuracy of that document, but rather they are

contending that regardless of what the position descriptions

state, GS-11 and GS-12 investigators perform the same work.

A-26

The central issue in the appeals, therefore, is the appellants’

allegation that there is no distinction in the investigative

assignments made to, or initiated by, GS-11 and GS-12

Criminal Investigators in the BATF. The appellants maintain

that all ATF Special Agents are assigned a geographical area

of responsibility wherein they investigate violations of the

full range of laws enforced by the Bureau regardless of the

grade level of the work involved in the cases. Information

obtained from the Treasury Department confirms some of

the appellants’ contentions and also indicates the procedure

that the Bureau (ATF) follows to classify investigator.posi-

tions at this level. According to BATF: ‘The great bulk of

an ATF Agent's workload consists of cases developed by the

Agent himself, and we review the Agent’s work by analyzing

the cases he has worked on and other duties he has perform-

ed over a twelve or eighteen month period, and comparing

this to the Civil Service Commission approved SPD and the

1811 standard... We concentrate on whether an employee

is performing GS-12 duties,"’

Since the classification appeals in this instance involve, in

effect, mixed-grade positions, it is not feasible as mentioned

earlier, to audit a sample of the positions and thereby arrive

at a decision that can be applied broadly to all of the posi-

tions appealed. Rather, each position will have to be individ-

ually reviewed to determine whether the appellant is per-

forming work at the GS-12 level and, if so, what percentage

of his total work time is spent on the higher level casework.

Review Plan

To accomplish this task quickly and thoroughly, we have de-

veloped questionnaires to be completed by each appellant

and his immediate supervisor (Attachments 1 and 2). This

A-27

approach we believe will generally develop sufficient current

and accurate information about each appellant’s position to

permit individual appeal decisions to be made. We are ask-

ing for your assistance in distributing the questionnaires, in

analyzing the data, and in recommending a decision in each

case. This Office will review the recommendations from all

three regions only to insure that the standards have been ap-

plied consistently across regional lines. We will issue a final

decision in each case in the form of a certificate. Any ve-

quest for reconsinderation will be handled by the Classifica-

tion Appeals Office with the customary request for com-

ment on the case from the region involved. Although it may

be burdensome, we believe that this procedure is the only

way to guarantee that each appeal is fairly and fully con-

sidered.

As previously stated, we feel that the questionnaire data

should provide a sound basis for arriving at a decision in most

of the cases. It may be necessary to audit some of the posi-

tions, however, to resolve ambiguous or borderline cases or

questionable issues (for example, where an appellant claims

that because of the organizational setting he must perform

work classifiable at the GS-12 level but he does so for less

than a majority of the time). We leave to your discretion the

decision of whether or not to conduct any onsite interviews.

We do suggest, however, that Special Agent Pace be contact-

ed for an audit by a representative of the Atlanta Region.

We ask that your recommendations in the appeal cases be

combined into the following categories:

1. Those positions which are not classifiable at the GS-12

grade level, and why;

A-28

2. Those positions which clearly support the GS-12 grade

level, and why; and

3. Those positions which you believe support the GS-12

grade level, but where the appellant spends less than the

majority of the time on the higher grade work. .

To aid in our review of the appeals, please follow the report

format shown in attachment 3 in preparing your evaluation

statements on each position. Attachment 4 is the adminis-

trative report prepared by the Department of the Treasury.

We recommend that you work through the ATF regional per-

sonnel office and ask that office for assistance in distributing

the questionnaires and arranging for any onsite interviews.

Attachment 5 is a list of the names and addressed of the ap-

pellants in your region. We are also returning to each region

the case files that were forwarded to us when the appeals

were centralized.

For work reporting purposes charge all time spent on process-

ing these appeals after September 28, 1975, to the new

PSEUDO code F110. This code will have to be written in on

the work report form in the PSEUDO code column. Prior

to September 28th credit the processing time to PSEUDO

code F100.

Attachments

A-29

APPENDIX E

5 U.S.C, 702

Right of review

A person suffering legal wrong because of agency action,

or adversely affected or aggrieved by agency action within

the meaning of a relevant statute, is entitled to judicial re-

view thereof. An action in a court of the United States seek-

ing relief other than money damages and stating a claim that

an agency or an officer or employee thereof acted or failed

to act in an official capacity or under color of legal authority

shall not be dismissed nor relief therein be denied on the

ground that it is against the United States or that the United

States is an indispensable party. The United States may be

named as a defendant in any such action, and a judgment or

decree may be entered against the United States: Provided,

That any mandatory or injunctive decree shall specify the

Federal officer or officers (by name or by title), and their

successors in office, personally responsible for compliance,

Nothing herein (1) affects other limitations on judicial re-

view or the power or duty of the court to dismiss any action

or deny relief on any other appropriate legal or equitable

ground; or (2) confers authority to grant relief if any other

statute that grants consent to suit expressly or impliedly for-

bids the relief which is sought.

Pub.L. 89-554, Sept. 6, 1966, 80 Stat. 392; Pub.L. 94-574,

§ 1 21, 1976, 90 Stat. 2721.

A-30

APPENDIX F

5 U.S.C. 5101(1)(A)

Sec. 5101 Purpose

It is the purpose of this chapter to provide a plan for classi-

fication of positions whereby -

(1) in determining the rate of basic pay which an em-

ployee will receive -

(A) the principle of equal pay for substantially equal

work will be followed.